Queensridge Towers LLC v. Allianz Global Risks US Ins

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 21, 2016
• Docket: 15-15128
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 21 2016 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

QUEENSRIDGE TOWERS LLC, No. 15-15128

Plaintiff-Appellant, D.C. No. 2:13-cv-00197-JCM-PAL v.

ALLIANZ GLOBAL RISKS US MEMORANDUM* INSURANCE COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted December 12, 2016** San Francisco, California

Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.

Plaintiff-Appellant Queensridge Towers LLC (“Queensridge”) brought this

action against Allianz Global Risks US Insurance Company (“Allianz”) to enforce

an insurance contract. Queensridge was the developer of a condominium project in

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Las Vegas, Nevada, and Allianz insured the project under a builder’s risk insurance

policy.

On April 29, 2008, Queensridge’s general contractor, Perini Building

Company (“Perini”), gave notice to Allianz of damage to 62 panes of glass at the

project. On March 22, 2011, Queensridge submitted to Allianz a sworn proof of

loss identifying 5,364 damaged glass panes and claiming over $5,000,000 in repair

and replacement costs. On January 9, 2012, more than three and a half years after

the original notice, Allianz denied Queensridge’s claim for the damaged glass.

Three hundred and sixty four days later,1 on January 7, 2013, Queensridge

filed suit against Allianz in Nevada state court, alleging, inter alia, breach of the

insurance contract. Allianz removed the case to federal court on diversity grounds.

The district court entered summary judgement for Allianz. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

Queensridge’s insurance policy contains an “Action Against Company”

provision that bars Queensridge from filing any action against Allianz for the

recovery of a claim unless the action was filed within twelve months of discovery

of the loss or damage “which gives rise to the claim.” Nevada law equitably tolls

such insurance limitation clauses during the period between the date the insured

1 2012 was a leap year, so lasted 366 days rather than the typical 365. 2 first gave notice of the loss until the date the insurer formally denies liability. See

Clark v. Truck Ins. Exch., 95 Nev. 544, 546 (1979).

Queensridge notified Allianz of its claim on April 29, 2008, and Allianz

denied the claim on January 9, 2012. The limitation clause was tolled during this

period. See id. Queensridge filed this action against Allianz on January 7, 2013.

The earliest Queensridge could have discovered the glass damage without running

afoul of the limitation clause was April 27, 2008.

The undisputed evidence shows that Queensridge discovered the glass

damage before April 27, 2008. Documents from Perini dated February 27, 2007,

and March 12, 2007, detail damage to 77 and 273 glass panes, respectively.

Several witnesses involved with the project stated that at various times during the

remainder of 2007 they observed scratches to glass at the project, including that the

windows had “been badly scratched and abraded,” and “exhibited excessive

scratching.” On October 11, 2007, Queensridge informed Perini that additional

damage, including “deep horizontal scratches on the exterior,” had been found, and

instructed Perini “to replace windows with scratches.” Because Queensridge

discovered the glass damage more than twelve months before filing this

action—even taking into account equitable tolling—the limitation provision bars

its claim for breach of contract.

3 AFFIRMED.